Changing the Past: Retroactive Application of Georgia’s First Offender Act

December 12, 2017Shawn Merzlak

It is often said in the legal profession that a criminal history is like a shadow because it follows you for the rest of your life. While mostly true, there are certain aspects of Georgia law that may assist some people in changing the past by literally getting rid of the shadow a criminal conviction can have on them.

Many people in Georgia have heard of or are somewhat familiar with the notion of a person using their “First Offender” or being sentenced as a First Offender as a means of avoiding conviction for a criminal charge. For those who may not be familiar, Georgia’s First Offender Act is a sentencing option available for many criminal offenses, both misdemeanor and felony, which allows a person who has no prior felony conviction to resolve a criminal case without a conviction. While there are some limitations and numerous offenses for which this type of sentencing is not allowed, the First Offender Act is an excellent way for a person to avoid becoming a convicted felon in cases where the evidence is not on their side. The person accused accomplishes this by entering a plea and completing the sentence of the court prior to the adjudication of guilt. If the person successfully completes their sentence, then the case is discharged by the court without a conviction and disappears from their criminal history for most employment purposes. Using this sentencing option is extremely advantageous to the offender as we are all aware of the negative consequences which can follow a person forever if they have a criminal conviction on their record, especially if they are convicted of a felony.

While sentencing under the First Offender Act is heavily utilized in today’s criminal courts during the initial sentencing phase of the offender, there is a large population of people who were eligible for First Offender treatment in the past but for a multitude of reasons were not sentenced pursuant to the act. Many times, the person was not informed by their attorney of the availability of First Offender treatment for their case. Also, it is very common for a person who was not previously represented by an attorney to not be informed of the First Offender Act sentencing option by the court at their sentencing.

Thankfully, in 2015 the Georgia legislature addressed this very issue and passed reforms allowing for the retroactive application of FOA sentencing. In 2017, the law was further clarified to make the retroactive provisions applicable to any case sentenced on or after March 18, 1968. Now, with the consent of the prosecutor, individuals who would have been eligible for First Offender Treatment at the time of their sentencing, but were not aware of their eligibility may be retroactively sentenced as a First Offender. If done properly, this allows for the prior conviction to be retroactively discharged without an adjudication of guilt and removed from a person’s criminal history for most employment purposes.

If you or someone you know may benefit from this type of sentencing modification, contact a criminal lawyer who has experience in this process and has successfully handled cases of this nature. An experienced criminal lawyer will be able to assist you in investigating your eligibility, navigating the complicated legal process, and fighting for the Georgia First Offender Act to be retroactively applied to your conviction.